Since antiquity, every society has had some concept of due process – what an individual is “due.”  What was considered due largely depended on historical and cultural context.  The extent of “due process" in a society’s customs is an important measure of its stability and decency.

Ancient Egyptians required judges to hear both sides of cases.  The Code of Hammurabi was a type of "due process". The Greeks and Romans offered juries and professional orators.

Formal "due process" in law tended to emerge in societies with accusatorial or adversarial systems.  Societies which practiced the inquisitorial system kept people in jail for long periods of time without letting them know the charges, and suspects were often compelled to confess or testify against themselves.

The phrase "due process of law" was first used in England sometime during the 13th or 14th century as synonymous for "law of the land".  Hence, it was made part of the common law and given a natural law interpretation.

American colonists seized upon the phrase, incorporating it into all the state charters and almost every document surrounding the American Revolution and Constitutional Convention.  Historical records from those time periods seem to indicate the founding fathers thought of "due process" as fairness.

Marbury v. Madison, established judicial review – power to decide whether laws and administrative actions meet "due process" and other requirements of the Constitution.  It also set a precedent that such matters are decided by an independent third party rather than by an entity that creates laws or an entity that administers them.

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